Four Faces of the Item Veto: A Reply to Tribe and Kurland

J. Gregory Sidak & Thomas A. Smith


At Sen. Edward Kennedy's request, constitutional scholars Laurence Tribe of Harvard and Philip Kurland of the University of Chicago considered the following question: In the absence of a constitutional amendment, does the President have the authority to use a "line-item" veto to kill portions of a bill passed by Congress, while signing the remainder of the legislation into law? The Senator inserted into the Congressional Record their response to his query, in which Tribe and Kurland concluded that "any attempt to exercise such a 'line-item veto' would clearly be unconstitutional."

On this conclusion, Sen. Kennedy emphasized, "two highly respected authorities-who have broadly differing views on many matters of constitutional interpretation-agree unequivocally." Only "conservative extremists," the Senator said, would continue to advocate that President Bush test the constitutionality of a line-item veto. Predictably, the newspaper headline the following day announced: "Line-Item Veto Unconstitutional, Legal Scholars Say."

Despite its pedigree, the Tribe-Kurland response to Sen. Kennedy's question contains little real analysis of the Constitution or its history. Although it is quite possible that the President does not have the inherent power under the Constitution to wield a line-item veto, the issue is far more subtle and ambiguous than Tribe and Kurland admit. In particular,Tribe and Kurland do not define what they mean by an "item veto" or what constitutes a "bill" for purposes of presentment to the President. Nonetheless, their ultimate conclusion is not one with which political conservatives necessarily would disagree. Indeed, two noted conservative lawyers who served in the Department of Justice under President Reagan-Bruce Fein and William Bradford Reynolds-have asserted that there is no defensible argument that an item veto exists implicitly in the Constitution. This appears to be the same conclusion that Assistant Attorney General Charles Cooper reached and gave to President Reagan in an Office of Legal Counsel memorandum not yet publicly available.

This skepticism notwithstanding, it is hardly "insulting the Constitution," as Sen. Kennedy asserted, to probe the question of whether the President has an as yet unexercised veto power. Although a number of lower federal courts have stated in dicta that the President has no item veto, the Supreme Court obviously has never addressed the question. It is not surprising, therefore, that reasonable minds differ on this constitutional question-as they do on abortion, the War Powers Resolution, affirmative action, the death penalty, and many other constitutional issues. Indeed, as we discuss below, on November 3, 1989, President Bush asserted a kind of item veto and, on November 20, 1989, Rep. Tom Campbell and five other members of Congress introduced a resolution urging the President to execute a line-item veto expressly for the purpose of testing its constitutionality. Sen. Robert Dole, the Senate Minority Leader, had already publicly urged the President to do so in January 1989. A prominent constitutional scholar, Ronald Rotunda, has also raised this suggestion. And President Bush himself has stated to the press that he would like to create a test case on the item veto.

President Bush, Sen. Dole, Rep. Campbell, and constitutional scholars other than Professors Tribe and Kurland are not indulging in conservative extremism or constitutional churlishness. What steps the Constitution permits the President to take to protect perhaps his most important formal power-the veto-from the measures that Congress has taken to weaken it is one of the most pressing questions anyone who cares about the separation of powers must face. Whether the item veto is constitutional or not, it challenges our understanding of the separation of powers and of the significance of the original meaning of the Constitution in defining the roles of Congress and the President in the lawmaking process.

In Part I of this Article, we discuss the ambiguity that surrounds the veto power because of the words that the framers used, and failed to use, in drafting the Constitution. In Part II, we show that the item veto can take at least four different forms. These forms differ in the degree to which one can plausibly argue that the President already possesses them. Part III identifies and analyzes several intriguing constitutional puzzles posed by the item veto. Part IV approaches the item veto from a different direction by asking what the word "bill" means for purposes of the veto power.

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